Satish Kumar vs State of Haryana

R.L. Anand, J.—This regular second appeal has been filed by Shri Satish Kumar who is aggrieved by the judgment and decree dated 31.5.1994 passed by the Court of Additional District Judge, Narnaul who set aside the judgment and decree dated 20.5.1993 passed by the Court of Sub-Judge 1st Class, Narnaul, whereby the suit of the plaintiff for declaration was decreed against the State of Haryana and the order of dismissal of the plaintiff from service was set aside.

The brief facts of the case are that Shri Satish Kumar plaintiff (now appellant herein) was serving in Haryana Police and was posted in Police Post No. 5 of Police Station N.I.T. Faridabad as Constable No. 730/NNL, 1071/FID. On 30.12.1984 when the evening roll call was taken he was found absent from duty at 6.00 p.m. without any intimation or obtaining any leave from the competent authority. He continued to remain absent from duty without leave till 14.2.1985 when he resumed duty at 5.35 p.m. His wilful absence from duty without seeking any permission or leave from the competent authority was construed as gravest act of misconduct and indiscipline and an inquiry was ordered. The inquiry officer furnished a copy of summary of allegations and the list of witnesses relied upon by the prosecution to the plaintiff. The plaintiff denied the allegations and claimed inquiry to establish the allegations. The prosecution examined four witnesses. The plaintiff was afforded opportunity to cross-examine them. After the prosecution evidence was closed, a formal charge against the plaintiff was framed. Copy of the charge-sheet was supplied to him. He was given an opportunity to file written statement to rebut the charge. The charge was also read over to him. He pleaded not guilty to the charge and chose to lead evidence in his defence. He examined Dr. H.R. Yadav and Dr. S.S. Sehgal in his defence and closed his evidence. In the report submitted by the inquiry officer the plaintiff was found guilty of wilful absence from duty from 30.12.1984 to 14,2.1985. The Superintendent of Police, Narnaul, who was the competent authority, after consideration of the report of the inquiry officer held the plaintiff guilty of charge framed against him; called the plaintiff in the office and served a show cause notice upon him as to why a penalty of dismissal from service should not be imposed upon him. The copy of show cause notice was also supplied to the plaintiff. He was given 15 days time to give reply to the notice. After considering the reply to the notice and the evidence produced by the prosecution for establishing the charge and the defence evidence, the Superintendent of Police, Narnaul which was the competent authority, passed the order dated 15.10.1985 dismissing the plaintiff from police force with immediate effect. The plaintiff filed an appeal against the order dated 15.10.1985 before the Deputy Inspector General of Police who by order dated 26.12.1985 rejected his appeal and affirmed the order passed by the Superintendent of Police Narnaul. The plaintiff then filed revision against the order dated 26.12.1985 to the Inspector General of Police Haryana who vide order dated 25.10.1986 dismissed the revision petition. Aggrieved by this order the plaintiff filed the suit for declaration to the effect that the orders dated 15.10.1985, 26.12.1985 and 25.10.1986 passed by the Superintendent of Police Narnaul, D.G.I. Police, Hisar Range and the Inspector General of Police Haryana are illegal, arbitrary, null and void and that he was entitled to''be retained in service with full benefits.

It was averred by the plaintiff that while he was posted in Police Station N.I.T. Faridabad in the year 1984, he fell sick all of a sudden. He got treatment from a hospital at Faridabad and was advised three days bed rest on 26.12.1985. He got an entry made in the Daily Diary Report No. 5 in Police Station N.I.T. Faridabad about his sickness. On 27.12.1984 when he was bed ridden, a relative came to him and took him to his village on some urgent call from his village. On reaching the village, his ailment further aggravated. He got treatment from Dr. S.S. Sehgal and thereafter from Dr. H.R. Yadav. He remained under treatment of Dr. H.R. Yadav till 13.2.1985 and on resuming duty on 14.2.1985 he got this fact recorded in the D.D.R. of the police station. It was further averred by the plaintiff that the inquiry officer did not afford him reasonable opportunity to produce evidence in his defence and failed to consider the evidence produced by him before the inquiry officer. According to him, the Superintendent of Police, Narnaul failed to appreciate the evidence produced before the inquiry officer and the facts adduced by him in the reply to the show cause notice and inflicted punishment of dismissal on the same grounds. He also challenged the orders passed by the D.I.G., Hisar Range and The Inspector General of Police Haryana.

The notice of the suit was given to the defendants. The suit was resisted. In the written statement filed by respondent No. 4 on behalf of all the defendants, the facts averred by the plaintiff were controverted and it was maintained that the plaintiff was given proper opportunity to produce evidence in his defence and the evidence produced by the prosecution and the plaintiff was taken into consideration before passing the final order of dismissal. It was also pleaded by the defendants that the suit of the plaintiff was liable to be dismissed for want of notice u/s 80 C.P.C. and that the civil Court at Narnaul had no jurisdiction to decide the suit.

From the pleadings of the parties, the learned trial Court framed the following issues :

Whether the orders dated 15.10.1985, 26.12.1985 and 25.10.1986 as detailed in para No. 6 of the plaint are arbitrary, against service rules, without jurisdiction, null and void and not binding upon the plaintiff ?OPP

Whether the suit in the present form is not maintainable ? OPD.

Whether the notice u/S 80 CPC is not valid ? OPD

Whether the plaintiff has no cause of action ? OPD

Whether civil court at Narnaul has no jurisdiction ? OPD.

Relief.

The parties led evidence in support of their case and vide judgment and decree dated 20.5.1993 the trial Court decreed the suit of the plaintiff for the following reasons given in para No. 9 of the judgment :-

"Now the facts viewed in a narrow compass are that the plaintiff has challenged the order of Superintendent of Police vide which his services were terminated and the order of DIG Hisar Range and I.G. Police Haryana passed in appeal in the present case. The learned counsel for the plaintiff has contended that the competent authority has dismissed the plaintiff from service without recording the findings that act of misconduct proved, incorrigibility and complete unfit for service. In order to appreciate the contention of the learned counsel for the plaintiff, relevant portion of the impugned order passed by Superintendent of Police, Narnaul is referred to below :-

"As regards the quantum of punishment to be awarded to the defaulter, no extenuating circum- stances are forthcoming for taking a lenient view in the matter. Keeping in view the gravest act of misconduct committed by the delinquent, I am of the opinion that no punishment short of the proposed punishment would meet the ends of justice. I, accordingly, order that the delinquent constable Satish Kumar No. 730/NNL is hereby dismissed from the force with immediate effect." According to the learned counsel for the plaintiff, the order passed by Superintendent of Police, Narnaul is not sustalnable in the eyes of law. In this connection, the learned counsel for the plaintiff has sought sustenance from the judgment of Hon''ble High Court of Punjab and Haryana rendered in State of Haryana v. Lakhan Lal 1991(2) SCT 718 (P&H). In this case, the plaintiff Lakhan Lal had joined as a constable in the police of Haryana in the year 1962 and on 3rd of February, 1978 an inquiry was conducted against him and in consequence of the finding of the inquiry, he was dismissed from service by the Senior Superintendent of Police, Hisar. The dismissal was challenged on various grounds. It is held by Hon''ble High Court that unless a finding is recorded by a competent authority that the employee was completely unfit for police service, the order becomes illegal, in view of the provisions of Rule 16.3(1) of the Punjab Police Rules, applicable to the State of Haryana. It is further contended by learned counsel for the plaintiff that Rule 16.2(1) of the Punjab Polices Rule applicable to the State of Haryana provides that to award punishment for the gravest acts of misconduct or as the cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police services, a specific finding should be recorded. This seems to be the mandate of rule 16.2. A particular act may be grave or the gravest but the act complained of may not be such that it must necessarily prove incorrigibility and complete unfitness for police services. I have perused the dictionary meaning of the word ''incorrigibility'' which is bad beyond correction or reform. Only such a person who is not capable of correction, amendment, improvement or reform. A person in a particularly given situation may be held guilty of commission of one of the gravest acts but the punishing authority may still be of the view that such a person is not incorrigible and he can be reformed or corrected. The punishing authority may also be of the view that such a person cannot be described to be one who is completely unfit for police service. In other words, the gravest act complained of against the police official may not prove incorrigibility and complete unfitness which is mandatory requirement for attracting the applicability of rule 16.2(1) of Punjab Police Rules. In view thereof, this court is of the firm view that unless and until the punishing authority comes to a firm conclusion and records a firm finding that the act complained of was of such a grave nature that it proved incorrigibility and complete unfitness for police service, the extreme punishment of dismissal in my view, cannot be restored (resorted ?). A similar view has been reiterated by Division Bench of our own Hon''ble High Court in the State of Punjab v. Parkash Chand 1992(1) SCT 123 (P&H). It is held that a distinction has to be drawn between misconduct simpliciter and grave misconduct used in the rules. Under Rule 16.2 of the Punjab Police Rules, it is essential for punishing authority to apply its mind and to record a specific finding as to whether the conduct of the delinquent official which has been complained of is of such a grave nature that it must lead inflexibly to his dismissal of service. In the absence of such findings, punishment is not sustainable. In this case also the plaintiff who was working as constable in the Punjab Police absented himself from duty for the period from July 20, 1977 to September 16, 1977. On account of his absence, an inquiry was held under the provisions of Punjab Police Rules and the plaintiff was dismissed from service. The appeal before the higher authorities was also dismissed and the plaintiff filed civil suit. The law laid down in the State of Punjab case (supra) is complete answer to the matter in dispute. It is evident from the impugned order Exhibit P-14 passed by the Superintendent of Police vide which the plaintiff was dismissed from service, no specific finding has been recorded by the Superintendent of Police that the complete conduct of delinquent official was the gravest act of conduct requiring the dismissal from services. My view find''s further support from the judgment of our own Hon''ble High Court reported as State of Punjab v. Achhar Singh 1992(1) SCT 43 (P&H). It is held that mere absence from duty does not amount to an act of gravest misconduct and total unfit (unfitness ?) for police service. It is crystal clear from the above observation that the impugned orders are not sustainable in the eyes of law.

The State of Haryana being not satisfied with the judgment and decree of the learned trial Court, filed an appeal before the Court of Additional District Judge, Narnaul who, for reasons given in paragraphs 10, 11 and 12, set aside the judgment and decree of the trial Court and dismissed the suit of the plaintiff. The reasons given by the first appellate Court are reproduced as follows :-

"10. The learned counsel for the parties have restricted arguments on the question of punishment. I have gone through the record including copy of charge Ex.P-8, summary of allegations Ex.P-9, show cause notice Ex.P-10, report of inquiry officer Ex.P-11, the order issued by Superintendent of Police Narnaul dated 15.10.1985 Ex.P-14, order passed by Deputy Inspector General of Police Hisar Range Hisar dated 26.12.1985, Exhibit P-17 and the order passed by Inspector General of Police Haryana dated 25.10.1986. Perusal of these documents would show that a charge was levelled against the respondent that he remained absent from duty from 30.12.1984 to 14.2.1985 without permission and he was guilty of committing gravest act of misconduct and was unfit for remaining in police force. A regular inquiry for establishing the charge was carried out in accordance with rules. The inquiry officer found the charge having been established against the respondent and submitted his report to the Superintendent of Police Nar-naul. The Superintendent of Police Narnaul duly considered the report of the Inquiry Officer and meticulously shifted (sifted ?) and discussed the evidence produced by the prosecution and the respondent during the course of inquiry. He came to the conclusion that the respondent was guilty of committing gravest act of misconduct and indiscipline which rendered him unfit for service. A show cause notice was served upon the respondent. He gave reply to the show cause notice. After considering his reply and the evidence, he was awarded punishment of dismissal from service by Superintendent of Police, Narnaul. The Deputy Inspector General of Police, Hisar Range, Hisar rejected the appeal filed by the respondent against the order of Superintendent of Police, Narnaul. The Inspector General of Police also re-jetted the revision petition filed by the respondent. The orders passed by the authorities are detailed and well-reasoned.

It has been contended by Shri S.K. Sharma, learned Public Prosecutor that the act of wilful absence from duty in case of a police official is a gravest act of misconduct and it attracts penalty of dismissal provided under Rules 16.2 of the Punjab Police Rules, 1934. Shri G.K. Sharma has contended that the decision of the lower Court that the act of the respondent did not tantamount to gravest act of mis-conduct and consequently his setting aside the orders passed by the Superintendent of Police Narnaul, Deputy Inspector, General of Police Hisar Range, Hisar and Inspector General of Police Haryana are not sus-tainable. In support of this, ShriG.K. Sharma has placed reliance upon Karnail Singh v. State of Punjab and others 1993(4) SCT 770 (P&H) : 1993(5) SLR 120 and State of Punjab and Others Vs. Ram Singh Ex. Constable, . In Karnail Singh''s case, the appellant who was a constable in the Punjab Police was found remaining absent from duty for five months and five days. After inquiry he was dismissed from service under rule 16.2 of the Punjab Police Rules, 1934. Action of the authority was held to be valid by Division Bench of our Hon''ble High Court. In the case State of Punjab and others v. Ram Singh, the respondent was working as a Gunman of the Deputy Commissioner of Police Ropar. He was dismissed from service by order dated February 11, 1980 by the Superintendent of Police Ropar on the charge that he was found heavily drunk in the evening of September 6, 1979 and was roaming at the bus stand wearing the service revolver. He was dismissed from service after departmental inquiry. It was held by the Hon''ble Supreme Court that act of a constable drinking heavy alcohol and becoming uncontrollable while on duty, even once, amounts to misconduct of gravest nature and imposing penalty of dismissal was also justified.

Shri G.C. Sharma, learned counsel for the respondent on the other hand contended that the absence from duty is not an act of gravest misconduct as contemplated under Rules 16.2 of the Punjab Police Rules, 1934 and the penalty of dismissal awarded by the competent authority is without jurisdiction and not justified. In support of this, Shri G.C. Sharma, learned counsel for the respondent has placed reliance upon State of Haryana v. Lakhan Lal 1991(2) SCT 718 (P&H), State of Punjab v. Achhar Singh 1992(1) SCT 43 (P&H) and State of Punjab v. Parkash Chand 1992(1) SCT 123 (P&H). The State of Haryana v. Lakhan Lal the dismissal of the respondent from service on the misconduct of absence from duty without recording findings that act of misconduct proved the employee completely unfit for public service was not found justified and the order of punishing authority was held to be bad in law. In State of Punjab v. Achhar Singh it was held that mere absence from duty does not amount to gravest misconduct and total unfitness for police service and the order of dismissal from the service was arbitrary and violative of Rule 16.2. In State of Punjab v. Parkash Chand it was held that mere absence from duty without leave would not amount to gravest misconduct. Yet another authority relied upon by Sh. G.C. Sharma, Ld. counsel for the respondent is Kartar Singh Grewal v. State of Punjab 1992(1) SCT 439 (SC) : 1992(1) SLR 415. In that case, the appellant was found to have unblemished record of service for 29 years. He was dismissed from service only three days prior to retirement. Even the evidence in support of the charge was not strong. It was held by the Hon''ble Supreme Court that normally the Court does not interfere with the order of disciplinary authority on punishment, yet in the instant case, the severest punishment of dismissal was not justified and the dismissal was ordered to be substituted with the order of compulsory retirement." This time the plaintiff was not satisfied with the judgment and decree of the first appellate Court and he has come to this Court by way of the present regular second appeal.

I have heard Shri V.K. Jain, learned Senior Advocate appearing on behalf of the appellant and Shri R.D. Sharma, learned Assistant Advocate General, Haryana on behalf of the respondents and with their assistance, have gone through the records of this case.

The learned Senior Advocate Shri V.K. Jain submitted that the first appellate Court had committed a patent error when it observed in paragraph 13 of the order that the plaintiff-appellant was guilty of gravest act of misconduct and that the order of dismissal from service was rightly awarded upon him by the competent authority, The counsel submitted that rule 16.2 of the Punjab Police Rules has been re-drafted so as to be applicable to the State of Haryana and as per the explanation added to rule 16.2, the absence from duty is not the gravest act of misconduct and, therefore, the punishing authority, appellate authority as well as the revisional authority besides the first appellate Court have committed patent illegality by holding that the absence of the plaintiff from duty was -the gravest act of mis-conduct. Since it was not a gravest act of misconduct, therefore, the penalty of dismissal from service by the punishing authority could not be imposed nor it could be upheld by the departmental authorities nor the first appellate Court could hold that the plaintiff was guilty of the gravest act of misconduct. He submitted that the order of dismissal by the Superintendent of Police, Narnaul was passed on 15th October, 1985 and this order was affirmed on 26.12.1985 and 25.10.1986. In support of his contention, learned counsel for the appellant has relied upon a judgment of the Hon''ble Division Bench reported in The State of Punjab v. Parkash Chand 1992(1) SCT 123 and submitted that as per the ratio of the Hon''ble Division Bench mere absence from duty without leave would not amount to gravest act of misconduct. He also relied upon ajudg-ment of the Hon''ble Single Bench reported in State of Haryana v. Lakhan Lal 1991(2) SCT 718 in which it was observed that dismissal under Rule 16.2(1) of the Punjab Police Rules without recording findings that by act of misconduct proved, the employee completely becomes unfit for police service, such order passed by the punishing authority is bad in law.

On the contrary, learned counsel for the respondents submitted that it is proved on record that plaintiff remained absent from duty w.e.f. 30th December, 1984 to 14th February, 1985. He was a member of the disciplined force. The plaintiff cannot take the benefit of Rule 16.2 as applicable to the State of Haryana and, therefore, his appeal is liable to be dismissed.

I have considered the rival contentions of the parties and am of the opinion that this appeal must fail. As I stated above, the charge against the plaintiff was that he remained absent from duty w.e.f. 30.12.1984 to 14.2.1985. The Rule 16.2, as applicable to the State of Haryana, was introduced w.e.f. 21st March, 1985, whereas the misconduct by the plaintiff was committed earlier to this. Therefore, the substituted rule 16.2 does not come to the rescue of the plaintiff, meaning thereby he will be governed by the rule 16.2 which was made applicable to both for the States of Punjab and Haryana. For the benefit of this order, it will be appropriate for me if I quote the provisions of Rule 16.2(1) which runs as follows :

"Dismissal shall be awarded only for the gravest acts of misconduct or as the cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police service. In making such an award regard shall be had to the length of service of the offender and his claim to pension."

Now it is to be seen whether the absence from duty on the part of the plaintiff was the gravest act of misconduct or not. What is the gravest act of misconduct will always be a question of fact depending upon the circumstances of each case. The gravest act of misconduct is incapable of strict definition. One has to apply one''s mind to the words and give a meaning to suit in them in the light of actual deed, situation and circumstances. It is equally law of the land that civil Court cannot sit over the judgment of the punishing authority in awarding punishment until and unless it is held that the punishment awarded by the punishing authority was arbitrary. Even a single act of misconduct would attract the applicability of rule 16.2(1) as the gravest act is incapable of any strict definition. The plaintiff-appellant is a member of disciplined force and from such a disciplined force a very high standard of discipline is required and expected. The close scrutiny of the detailed punishment order passed by the Superintendent of Police, Narnaul, would show that the punishing authority did come to the conclusion that the delinquent official by remaining absent from duty w.e.f. 30th December, 1984 to 14.2.1985 has committed the gravest act of misconduct. In paragraph 11 of the said order it was observed by the Superintendent of Police as follows ; "As regards the quantum of punishment to be awarded to the defaulter no extenuating circumstances are forthcoming for taking a lenient view in the matter. Keeping in view the gravest act of misconduct committed by the delinquent, I am of the opinion that no punishment short of the proposed punishment would meet the ends of justice. I accordingly order that the delinquent constable Satish Kumar No. 730/NNL is hereby dismissed from the force with immediate effect."

The matter was also examined by the appellate authority and vide order dated 26.12.1985 the appellate authority was also of the view that the appellant did not deserve any leniency. In paragraph 2 of the order while narrating the facts, the appellate authority also observed that "absence of the delinquent without seeking any permission or leave from the competent authority amounts to gravest act of misconduct and indiscipline which renders him completely unfit for police service" and for this reason the departmental inquiry was initiated against him. Yet further the Inspector General of Police Haryana vide his order dated 25.10.1986 observed "This was a gravest act of misconduct for which he was rightly dismissed from the force. There are also no mitigating circumstances which warrant mercy. The revision petition merits rejection and hence I order accordingly".

Since the amendment has been made for the purpose of Haryana only after the commission of the act of misconduct on 21 st March, 1985, therefore, the case of the plaintiff has to be governed by the un-amended rules irrespective of the fact that the order of dismissal was passed on 15th October, 1985. Both the judgments which have been relied upon by the learned counsel for the appellant have no applicability to the facts in hand. In this case, a finding has been recorded by the punishing authority, appellate authority as well as the revisional authority that the gravest act of misconduct completely renders the plaintiff unfit for police service, therefore, the order of dismissal was passed.

The learned counsel for the respondent has re lied upon a judgment of the Hon''ble Supreme Court re ported as The State of Punjab and others v. Bakhshish Singh 1997(3) SCT 401 (SC) : 1997(4) SLR 590 in which it was held that the civil court had no jurisdiction to substitute its own view to that of the punishing authority. It is for the punishing authority to pass appropriate punishment. Since the punishing authority has viewed all the pros and cons of this case and there is a consistent finding of the three authorities that the plaintiff does not deserve any leniency, there fore, this Court is not inclined to say that the punishment awarded by the punishing authority was arbitrary or excessive. The learned counsel for the respondent also placed reliance on Ram Kumar v. The State of Haryana, 1997(1) SCT 271 (P&H) : 1997(5) SLR 504 in support of his contention and it was contended that no interference is called for in this appeal. I fully subscribe to the contention raised by the learned counsel for the respondents.

In this view of the matter, I do not find any merit in this appeal and the same is hereby dismissed with no order as to costs.

Appeal dismissed.